Fred Henry Beale v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-00190-COA
FRED HENRY BEALE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
09/27/2006
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
MICHAEL J. MALOUF
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
ELEANOR FAYE PETERSON
CRIMINAL - FELONY
CONVICTED OF CAPITAL MURDER AND
SENTENCED TO SERVE A TERM OF LIFE IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED - 09/09/2008
BEFORE MYERS, P.J., ISHEE AND CARLTON, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Fred Henry Beale appeals the judgment of the Circuit Court of Hinds County that found him
guilty of capital murder and sentenced him to serve a term of life in the custody of the Mississippi
Department of Corrections. Beale appeals his conviction, claiming that: (1) the trial court erred in
peremptorily finding him guilty of burglary; (2) the trial court erred in not allowing him to argue
self-defense; (3) the trial court erred in refusing to allow him to argue self-defense pursuant to the
State’s jury instruction; (4) the trial court erred in refusing his manslaughter jury instruction; (5) the
trial court erred by showing bias against him; and (6) the cumulative effect of errors warrants
reversal.
FACTS AND PROCEDURAL HISTORY
¶2.
The following case arises out of the shooting death of Leon Thomas, Jr., by Beale. The
shooting occurred in the home of Ulander Taylor. Beale had been romantically involved with
Taylor for more than fifteen years and that relationship had produced an eleven-year-old child.
Taylor testified that Thomas was at her home dropping off boxes to assist her in her upcoming move
when Beale arrived at her door.
¶3.
At trial, Beale testified that he called Taylor while en route to her apartment, but she
informed him not to come to her home since she was about to leave. However, Beale claimed he
responded that he was almost there and would just continue to her home, and Taylor did not tell him
not to come over. However, Taylor testified that she instructed Beale not to come to her home.
Beale claimed that when he arrived at the apartment he had no knowledge that Thomas was at
Taylor’s home.
¶4.
Beale claimed that when he arrived and knocked on the locked door, no one responded and
he kicked in the door out of frustration because he knew Taylor was still inside. Taylor testified that
she was on the phone with her sister, Deloise Allen, when Beale arrived at her home. The State
alleged that Taylor did not let Beale inside her home or give him permission to come inside. Taylor
testified she heard Beale knocking and that she was going to open the door and let Beale in because
he was about to knock the door down. Beale admitted he carried a nine-millimeter gun inside the
home on the day of the shooting. However, he and Taylor testified that he always carried his gun
with him when he visited her apartment because his vehicle had been broken into several times.
¶5.
Beale testified at trial that he merely intended to go inside to talk to Taylor. However, after
gaining entry into her apartment, Beale hit Taylor with the nine-millimeter gun, injuring her and
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knocking her unconscious, which Taylor and Beale confirmed by their testimonies. Beale also
claimed that Thomas, who was in the bedroom, was pointing a gun at him. Beale claims the alleged
gun Thomas pointed at him was actually purchased by Beale for Taylor to keep at her home. Beale
testified that Taylor kept the gun at her home and had recently placed it on a dresser in her bedroom
because she was packing. Taylor testified that the gun Beale claimed Thomas pointed at him did
not have a clip when Beale gave her the gun. She testified that Beale knew the gun did not have any
ammunition. Beale claimed he fired a warning shot into the bedroom in self-defense to let Thomas
know he also had a gun. Beale admitted the “warning shot” hit Thomas in the left side, fatally
wounding him.
¶6.
At that point, Taylor testified that she had regained consciousness, and Beale told her to call
for an ambulance because he had shot Thomas. Beale then left the scene in his vehicle. Beale
claimed that after he shot Thomas, he picked up the gun Thomas allegedly pointed at him and threw
it out of his vehicle on Highway 220 in the ensuing panic and confusion. Taylor testified at trial that
after the night of the shooting she never saw the gun she previously had placed on the dresser. Beale
traveled to his uncle’s home and was later contacted by the police. The police informed him that
Thomas was going to be okay, and Beale subsequently traveled to the Clinton Fire Department to
turn himself in. Beale was then informed that Thomas had died.
STANDARD OF REVIEW
¶7.
When reviewing a challenge to a trial court’s refusal of a jury instruction, this Court will
look at the jury instructions actually given as a whole, and “if the instructions fairly announce the
law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 956 So.
2d 358, 362 (¶7) (Miss. Ct. App. 2007) (quoting Williams v. State, 803 So. 2d 1159, 1161 (¶7)
(Miss. 2001)). Additionally, a jury instruction may be refused if it “incorrectly states the law, is
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covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. (quoting
Ladnier v. State, 878 So. 2d 926, 931 (¶20) (Miss. 2004)). Also, with regard to a trial court’s
impartiality, an appellate court “will not hesitate to reverse where the trial judge displays partiality,
becomes an advocate, or, in any significant way, conveys to the jury the impression that he has sided
with the prosecution.” Layne v. State, 542 So. 2d 237, 242 (Miss. 1989) (citing West v. State, 519
So. 2d 418, 422-24 (Miss. 1988)).
DISCUSSION
I.
WHETHER THE TRIAL COURT PEREMPTORILY FOUND BEALE GUILTY OF
BURGLARY BY PROHIBITING HIM FROM ARGUING SELF-DEFENSE.
¶8.
Beale argues that whether or not he was guilty of burglary was a question of fact for the jury.
Therefore, Beale contends the trial court peremptorily found him guilty of burglary as a result of its
decision to prohibit him from claiming self-defense or submitting a self-defense instruction to the
jury. Beale argues that evidence was presented at trial to demonstrate that he did not break and enter
Taylor’s home with the intent to commit a crime, and the State did not prove every element of
burglary beyond a reasonable doubt. Specifically, Beale argues that the State failed to prove he had
the intent to commit some crime upon entering Taylor’s apartment. Beale argues that he was not
granted the proper instructions which would have allowed the jury to consider that he did not
commit a burglary. Beale testified at trial that he only intended to talk to Taylor once inside the
apartment. Beale argues that when he attempted to explain to the jury that he had no intention of
committing a crime when he entered the apartment on the night in question, the trial court
disallowed that testimony. Beale further points to testimony at trial by Taylor, which he contends
established that Taylor was in the process of voluntarily opening the door to let him in when he
kicked it open. Taylor testified at trial that she was going to let him in voluntarily because she had
nothing to hide and that Beale did not have to kick in the door to gain entry. Beale argues that his
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claim of self-defense could only be barred if the jury found that he was guilty of burglary. Beale
argues the trial court erred by denying his jury instructions D-14 and D-15 and his self-defense
instructions D-1, D-2, D-3, D-4, D-8, and D-12.
¶9.
The State argues the trial court properly denied Beale’s request for a self-defense instruction.
The State argues that Beale in essence admitted to the burglary. The State argues that Beale is
attempting to argue that his claim of self-defense, which arose after he entered the apartment, would
somehow go back in time and justify his breaking and entering.
¶10.
The main jury instructions at issue with this alleged assignment of error are refused
instructions D-14 and D-15. D-14, which reads in its entirety as follows: “The Court instructs the
Jury that if you find from the evidence in this case that on or about March 26, 2005, Fred H. Beale
did break and enter the dwelling of Ulander Taylor without the intent to commit some crime therein,
then your duty under the law is to find the Defendant, Fred H. Beale, ‘not guilty’ of the underlying
offense of capital murder of Leon Thomas, Jr., as charged in the indictment herein.” D-15 reads in
its entirety as follows: “The Court instructs the Jury that to find Defendant, Fred H. Beale, guilty of
capital murder, you must first find, beyond a reasonable doubt, that Fred Beale, did unlawfully break
and enter the dwelling of Ulander Taylor with the intent to commit some crime therein. Therefore,
if the State has failed to prove beyond a reasonable doubt that Fred Beale entered Ulander Taylor’s
dwelling without her permission, and that he entered with the intent to commit some crime, then you
must find that the Defendant, Fred H. Beale, ‘not guilty’ of the underlying offense of capital murder
of Leon Thomas, Jr., as charged in the indictment herein.”
¶11.
The underlying crime Beale was charged with to elevate the murder charge to capital murder
was burglary under Mississippi Code Annotated section 97-17-23 (Rev. 2006), which reads in its
entirety as follows:
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Every person who shall be convicted of breaking and entering the dwelling house or
inner door of such dwelling house of another, whether armed with a deadly weapon
or not, and whether there shall be at the time some human being in such dwelling
house or not, with intent to commit some crime therein, shall be punished by
imprisonment in the Penitentiary not less than three (3) years nor more than
twenty-five (25) years.
“The statute requires breaking and entering with the intent to commit some crime in order to
constitute burglary.” Stevens v. State, 806 So. 2d 1031, 1045 (¶56) (Miss. 2001) (citing Miss. Code
Ann. § 97-17-23)).
¶12.
Beale was charged with capital murder pursuant to Mississippi Code Annotated section 97-3-
19(2)(e) (Rev. 2006), which is defined, in part, as:
(2) The killing of a human being without the authority of law by any means or in any
manner shall be capital murder in the following cases: . . . (e) When done with or
without any design to effect death, by any person engaged in the commission of the
crime of . . . burglary . . . or in any attempt to commit such felonies.
“Unlike other sections of the capital murder statute, Subsection 2(e) does not require the prosecution
to prove the elements of murder, only that a killing took place while the accused was ‘engaged in
the commission’ of the enumerated felonies.” Layne, 542 So. 2d at 243. In that case, one of the
central issues was “to what degree are felons to be held strictly accountable for a death resulting in
the course of their felonious acts.” Id. at 242. Layne argued on appeal “that self-defense is an
appropriate defense in a capital murder.” Id. at 243. However, the court disagreed and determined
that “there appears no reasonable basis upon which the jury may rationally have concluded that
Layne had not participated actively in the robbery of George Edwards and killed Edwards in his
effort to escape therefrom.” Id. That court reasoned that the purpose behind the felony-murder rule
was to deter even accidental killings in the commission of certain felonies by holding those guilty
strictly liable for even accidental killings. Id. (citing Davis v. State, 597 S.W.2d 358, 360 (Tex.
Crim. App. 1980)). “[T]he rule assumes the absence of a reasonable basis upon which the jury may
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have disbelieved the prosecution’s evidence of the underlying felony.” Id. at 244. Finally,
“Mississippi adheres to the common law rule that an aggressor is precluded from pleading
self-defense.” Id. (citing Patrick v. State, 285 So. 2d 165, 168 (Miss. 1973)). Accordingly, this
assignment of error is without merit.
II.
WHETHER THE TRIAL COURT ERRED IN DENYING BEALE’S ATTEMPT TO
ARGUE SELF-DEFENSE AT TRIAL.
¶13.
Beale argues that it was reversible error for the trial court to dismiss the relevance of
Thomas’s gun and that the trial court’s instructions regarding the second gun were tantamount to
a peremptory instruction of guilt. Beale argues he only acted in necessary self-defense when he shot
the victim, and he presented testimony regarding his actions. Beale testified at trial that he had no
knowledge that another man was in Taylor’s home at the time he entered. Beale further testified that
he saw a gun coming toward him, was fearful, and he reacted by shooting what he referred to as a
single warning shot. Beale argues that this can only be classified as either an accident or selfdefense. Beale contends that the trial court improperly refused to allow jury instructions D-7 and
D-8. Beale argues there was sufficient evidence to support a jury instruction regarding self-defense.
Beale lists the following evidence that he contends would support this instruction: Taylor testified
that the .22 pistol Beale had given her was on the dresser in the bedroom where Thomas was shot
and that she never saw the gun again after the shooting. Taylor also testified that Beale told her he
shot Thomas in self-defense, in response to Thomas aiming the same .22 pistol at him. Beale
additionally testified that he took the .22 pistol and later threw it out of his car window, while he was
in a state of panic, after the shooting. Beale argues that the testimony of the medical expert in
forensic pathology, Dr. Steven Hayne, refuted the State’s theory that Thomas was sitting down when
he was shot. Beale contends Dr. Hayne’s testimony established that Thomas’s injuries were
consistent with the trajectory of the bullet entering his left side under his arm and exiting his right
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side, as if Thomas were turned sideways, with his left hand raised. Beale also points out that he was
prohibited from arguing that he shot Thomas in self-defense, and that the jury was instructed to
ignore any comments made by Beale regarding the alleged gun Thomas was holding at the time of
the shooting. Beale argues that the State then referred to the same gun, the gun that Thomas was
allegedly holding at the time he was shot, during its cross-examination of Beale. Beale argues that
the evidence regarding the second gun could have exculpated him. Beale points out that the State
was allowed to refer to the second gun again during its closing argument. Beale argues that it was
prejudicial for the trial court to state that Thomas’s gun was irrelevant in light of the fact that the
State argued during its closing argument that the gun never existed. In summary, Beale argues that
he was entitled to present his theory of self-defense, and the trial court erred in instructing the jury
to disregard the fact that Beale alleged the decedent was pointing a gun at him at the time of the
shooting.
¶14.
The State argues that because Beale admitted to kicking in the door, entering with a gun, and
hitting Taylor, Beale was precluded from any right to present a theory of self-defense. The State
contends that “[i]f a person provokes a difficulty, arming himself in advance, and intending, if
necessary, to use his weapon and overcome his adversary, he becomes the aggressor, and deprives
himself of the right of self-defense.” Chandler v. State, 946 So. 2d 355, 363 (¶32) (Miss. 2006)
(quoting Parker v. State, 401 So. 2d 1282, 1286 (Miss. 1981)). The State argues that since Beale
admitted in his testimony that he entered the fray armed with a weapon, he was not entitled to a selfdefense instruction.
¶15.
In light of the reasoning articulated under Issue I, this Court finds that this assignment of
error is without merit.
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III.
WHETHER THE TRIAL COURT ERRED IN DENYING BEALE’S ATTEMPT TO
ARGUE SELF-DEFENSE IN HIS CLOSING ARGUMENT IN LIGHT OF THE
CAPITAL MURDER JURY INSTRUCTION.
¶16.
Beale argues it was error for the trial court to allow instruction S-1A, which stated that the
jury could convict Beale of capital murder if it found that Beale shot and killed Thomas while
committing house burglary . . . “not in necessary self-defense.” Beale argues that this was error
because the trial court did not allow him to argue self-defense in his closing argument, which misled
and confused the jury regarding self-defense.
¶17.
The State argues that Beale was not entitled to argue self-defense as a matter of law. The
State argues that since Beale entered the premises with a gun in hand without being aware of any
danger, he is thereby denied any right to claim self-defense.
¶18.
Mississippi adheres to the common law rule that an aggressor is precluded from pleading
self-defense. Layne, 542 So. 2d at 244 (citing Patrick, 285 So. 2d at 168 (Miss. 1973)).
¶19.
Furthermore, “an instructional error will not warrant reversal if the jury was fully and fairly
instructed by other instructions.” Hunter v. State, 684 So. 2d 625, 635 (Miss. 1996). While the
portion of the capital murder jury instruction reading, “not in necessary self-defense,” was
inappropriate, it was harmless error. “Error is harmless if it is clear beyond a reasonable doubt that
it did not contribute to the verdict.” Conley v. State, 790 So. 2d 773, 793 (¶72) (Miss. 2001)
(citation omitted). Beale was properly precluded from arguing self-defense at trial as he was
charged under the capital murder statute. Therefore, this Court finds no merit to this assignment of
error.
IV.
WHETHER BEALE WAS IMPROPERLY DENIED THE LESSER-INCLUDEDOFFENSE MANSLAUGHTER JURY INSTRUCTIONS.
¶20.
Beale argues that the jury should have been allowed to consider the lesser-included offense
of manslaughter, but the trial court improperly refused the jury instructions regarding manslaughter.
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Beale argues that he should have been allowed to either argue the lesser-included offense of
manslaughter in the heat of passion or argue imperfect self-defense. Beale argued that his testimony
and Taylor’s testimony supported these two theories.
¶21.
The State argues that Beale was not entitled to a manslaughter instruction based on the
testimony he gave at trial. The State argues that even if angry words were exchanged, “words alone
. . . or mere disagreements are not enough to require a heat-of-passion instruction.” Myers v. State,
832 So. 2d 540, 542 (¶10) (Miss. Ct. App. 2002) (citing Gates v. State, 484 So. 2d 1002, 1005 (Miss.
1986)). Additionally, the State argues that criminal intent can be inferred from the fact that he
kicked in the door to the premises, possessed a deadly weapon, and assaulted Taylor with the gun
before shooting Thomas. Therefore, the State argues that there are no facts supporting a claim of
imperfect self-defense.
¶22.
“Where a party offers evidence sufficient that a rational jury might find for him on the
particular issue, that party of right is entitled to have the court instruct the jury on that issue and
through this means submit the issue to the jury for its decision.” Sheppard v. State, 777 So. 2d 659,
663 (¶15) (Miss. 2000) (quoting Anderson v. State, 571 So. 2d 961, 964 (Miss. 1990)). Thus, “the
court may properly refuse an instruction if it states the law incorrectly, is covered elsewhere in the
instructions, or is without an evidentiary foundation.” Cotton v. State, 933 So. 2d 1048, 1050 (¶7)
(Miss. Ct. App. 2006) (emphasis added) (citing Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991).
Additionally, the Mississippi Supreme Court has previously held that “where the killing occurred
during the course of a robbery, the defendant is not entitled to a manslaughter instruction.” Simmons
v. State, 805 So. 2d 452, 474 (¶32) (Miss. 2001) (citing Burns v. State, 729 So. 2d 203, 225 (¶103)
(Miss. 1998)). This Court must determine whether the trial court improperly denied Beale a
manslaughter jury instruction.
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¶23.
The Mississippi Supreme Court has previously defined heat-of-passion manslaughter as:
a state of violent and uncontrollable rage engendered by a blow or certain other
provocation given, which will reduce a homicide from the grade of murder to that of
manslaughter. Passion or anger suddenly aroused at the time by some immediate and
reasonable provocation, by words or acts of one at the time. The term includes an
emotional state of mind characterized by anger, rage, hatred, furious resentment or
terror.
Tait v. State, 669 So. 2d 85, 89 (Miss. 1996) (quoting Buchanan v. State, 567 So. 2d 194, 197 (Miss.
1990)). “Pushing or shoving is also insufficient to require the [heat-of-passion-manslaughter]
instruction absent testimony that the defendant was acting out of violent or uncontrollable rage.”
Cooper v. State, 977 So. 2d 1220, 1223 (¶11) (Miss. Ct. App. 2007) (citing Turner v. State, 773 So.
2d 952, 954 (¶8) (Miss. Ct. App. 2000)).
¶24.
Further, imperfect self-defense is where “an intentional killing may be considered
manslaughter if done without malice but under a bona fide (but unfounded) belief that it was
necessary to prevent death or great bodily harm.” Smiley v. State, 815 So. 2d 1140, 1146 (¶22)
(Miss. 2002) (quoting Wade v. State, 748 So. 2d 771, 775 (¶12) (Miss. 1999)).
¶25.
Therefore, there must be evidence present in the record that would have supported a
manslaughter instruction if Beale’s contention that the trial court improperly denied the instruction
is to be found meritorious. Under the facts presented in the record, Beale admitted kicking in the
door to Taylor’s apartment. Beale also admitted to hitting Taylor in the head with a nine-millimeter
gun upon entering her home, knocking her unconscious for a short period of time. After knocking
Taylor unconscious, Beale admitted to spotting Thomas in the bedroom, but he claimed that Thomas
pulled a gun on him, forcing him to resort to self-defense by shooting Thomas. However, the gun
Thomas was alleged to have brandished was never presented at trial. Beale claimed that he threw
out the gun while driving to his uncle’s home after the shooting. Further, Beale testified at trial that
when he entered the apartment he only had intentions of talking to Taylor. There was no evidence
11
presented that words were exchanged between Taylor and Beale once Beale entered the home.
Testimony established that Beale hit Taylor very quickly upon entering her home. Under these facts,
this Court cannot say the trial court erred in failing to grant a heat-of-passion or an imperfect selfdefense manslaughter instruction. Therefore, we affirm the trial court’s denial of the manslaughter
instructions.
V.
WHETHER THE TRIAL COURT LACKED IMPARTIALITY THROUGHOUT THE
TRIAL.
¶26.
Beale argues that the trial court showed bias against him during the trial through the court’s
continual sustaining of objections. Beale claims that this display of bias toward him and his counsel
prevented him from obtaining a fair trial. Beale argues that the trial court’s continually sustaining
objections to his proof at trial compromised his attorney’s credibility with the jury and also sent a
message to the jury that the trial judge wanted it to convict Beale. Beale cites to Thompson v. State,
468 So. 2d 852 (Miss. 1985) and West v. State, 519 So. 2d 418 (Miss. 1988) in support of his
argument. In Thompson, the supreme court found reversible error where “the court initiated a series
of questions [to the State’s witness] without [any] request from the [S]tate or the defendant which
had the effect . . . of reconstituting the witness and thereby lending the court’s approval to her
testimony before the jury.” Thompson, 469 So. 2d at 853-54. The supreme court reversed and
remanded the case, stating that:
[T]he weight and dignity of the court accompanies each question or comment,
although not so intended by the judge, and are very likely to be interpreted by the
jury as the court’s approval of the witness and her testimony, thereby lending unity
to it and thus diverting the jurors’ attention from their responsibility of deciding the
case from the evidence, untainted, as heard by them from the witness stand.
Id. at 854. Additionally, in West, the supreme court found thirty:
instances where the trial judge improperly, or unnecessarily, interjected himself into
the proceedings. Of those thirty instances, twenty are of the type which may be
characterized as coaching the district attorney. On nine occasions, the trial judge
12
posed questions to witnesses where the district attorney’s questions were ineffective.
The questions by the trial judge generally served to strengthen the prosecution’s case
West, 519 So. 2d at 421. The defense objected to the “extensive instructions from the court to the
district attorney as to how to proceed with his cross-examination.” Id. The supreme court reversed
and remanded the case in light “of the involvement and participation in the trial below by the
presiding judge.” Id. at 424.
¶27.
The State argues that Beale has raised no argument which overcomes the presumption of the
trial court’s fairness and impartiality throughout the trial below. We agree. While Beale cites to
numerous instances where the trial judge sustained objections to Beale’s proof, those rulings did not
amount to reversible error. This issue is without merit.
VI.
WHETHER CUMULATIVE ERRORS WARRANT REVERSAL.
¶28.
Beale argues that the cumulative effect of the numerous alleged errors by the trial court
amount to reversible error. The State argues that there were no reversible errors, and Beale was not
denied a fair trial in the case at bar.
¶29.
This Court must determine “whether the cumulative effect of all errors committed during the
trial deprived the defendant of a fundamentally fair and impartial trial.” Byrom v. State, 863 So. 2d
836, 847 (¶12) (Miss. 2003). “Where there is ‘no reversible error in any part, . . . there is no
reversible error to the whole.’” Id. (quoting McFee v. State, 511 So. 2d 130, 136 (Miss. 1987)). It
is also well stated that:
upon appellate review of cases in which we find harmless error or any error which
is not specifically found to be reversible in and of itself, we shall have the discretion
to determine, on a case-by-case basis, as to whether such error or errors, although not
reversible when standing alone, may when considered cumulatively require reversal
because of the resulting cumulative prejudicial effect.
Id. at 847 (¶13). From this Court’s review of the record, we find there was no cumulative prejudicial
effect during the trial below that would require reversal of Beale’s conviction and sentence.
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¶30. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF
CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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